Citation Nr: 1111339
Decision Date: 03/22/11 Archive Date: 04/05/11
DOCKET NO. 09-44 157 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana
THE ISSUE
Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Darla J. Lilley, Esq.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Donna D. Ebaugh, Associate Counsel
INTRODUCTION
The Veteran served on active duty from November 1971 to August 1973.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from the RO in New Orleans, Louisiana. A review of the procedural history of the claim is in order. Initially, the Veteran claimed service connection for posttraumatic stress disorder (PTSD). That claim was denied by the RO in February 1997, then remanded by the Board in July 2001, then returned to the Board and subsequently denied in May 2003. The Veteran appealed the Board's decision and in March 2006 the Court of Veteran's Appeals affirmed the Board's decision to deny the claim for PTSD but remanded the claim for further development regarding other acquired psychiatric disorders with which the Veteran had been diagnosed.
In compliance with the Court's order, in May 2007, the Board remanded the claim regarding service connection for an acquired psychiatric disorder, other than PTSD. The claim was denied by the RO in May 2008 and is now before the Board.
The Veteran appeared at a hearing before a Veterans Law Judge in May 2001. The Veterans Law Judge who conducted this hearing has since retired. The appellant was informed of this fact and in April 2007 informed the Board that he did not desire another hearing. The transcript of the May 2001 hearing is contained in the claims folder and will be considered.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). In the present case, the Board finds that additional development is required in order to satisfy VA's obligations under the VCAA.
Specifically, in June 2010, the Veteran asked that the RO obtain his records from the New Orleans VA Medical Center (VAMC) since 2009. A review the record shows that the most recent records from this facility are dated in May 2008. The Board notes in this regard that records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The identified VA treatment records must therefore be obtained.
The Board also notes that the Veteran has identified treatment at the East Jefferson Hospital. As the records may support the Veteran's claim, they should be obtained.
Next, the Board observes that there is no clear evidence that the Veteran sought treatment for a psychiatric in service or for many years thereafter. He avers, however, that he should not be penalized for his delay in seeking for treatment for the same. He asserts that he has been experienced his psychiatric symptoms since his active service. The Veteran is deemed competent to make such assertions. Thus, under VA's duty to assist, he should be afforded a VA examination.
Accordingly, the case is REMANDED for the following action:
1. Obtain VA clinical records from the VA Medical Center in New Orleans, Louisiana, for the period from May 2008 to the present. Any negative response should be noted.
2. After securing the necessary release, request medical records from the East Jefferson Hospital, 4200 Houma Boulevard, Metairie, Louisiana 70006 for the period from September 2008 to May 2009. Any negative response should be noted.
3. Following receipt of the records above, schedule the Veteran for an appropriate VA examination to determine the nature, extent, onset and etiology of his acquired psychiatric disorder, other than PTSD. The claims folder should be made available to and reviewed by the examiner and such review should be noted in the examination report. All indicated studies should be performed and all findings should be reported in detail.
The examiner should render an opinion as to the nature of any acquired psychiatric disorder, other than PTSD, and whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed acquired psychiatric disorder, other than PTSD, had its onset in service or within one year of service discharge or is otherwise shown to be etiologically related to service. The rationale for all opinions expressed should be provided in a legible report. If the examiner cannot provide a requested opinion without resorting to mere speculation such should be stated with supporting rationale.
4. The RO/AMC must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2010). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable.
5. Thereafter, the RO should re-adjudicate the issue on appeal. If any benefit sought remains denied, the Veteran and the representative should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to the issues, as well as a summary of the evidence received since the issuance of the last SSOC. An appropriate period of time should be allowed for response.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
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MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).